Maintaining independence in a collaborative government structure

Post written by  Daniel Greenberg, Barrister specialising in legislation.

Introduction by Peter Sasieni

Much of cancer prevention needs to be viewed as a public health activity. As with other areas of public health the environment in which we live has a critical role in determining cancer risk. Today’s environmental risks come primarily from tobacco, alcohol and excess food.

Both for the control of these risks and for the implementation of screening and early detection initiatives, we need evidence-based policies that balance public health against personal liberties and ensure that government initiatives are cost-effective. In democracies, public health policies tend to be set by civil servants. Here there is a challenge, how can society make public health policy more democratically?

By inviting industry, lobbyists, and other stakeholders to participate in policy making does government become more or less democratic? Such issues were touched upon in our previous posting discussing whether we should be more “Drinkaware aware”. In the blog below, a leading legal expert on legislation, Daniel Greenberg, discusses the policy making process in government and questions whether it is time for a review. Over the last half century these processes have evolved. Do the processes we have today serve society well or could they be adapted and improved?

Maintaining independence in a collaborative government structure

For the last two or three decades government behaviour in the United Kingdom has moved away from a formal authoritarianism towards a consultative and collaborative approach.

For all kinds of reasons this is both welcome as a matter of policy, and simply bowing to the inevitable in the face of modern approaches to communication and participation in decision-making generally.

But it has its dangers. Perhaps the most important of which is the difficulty of guarding independence in government decision making and preventing consultation and collaboration becoming opportunities for undue influence.

The Labour government formed in 1997 made a conscious decision, which was as much about perception as about reality, to break down the formality of Whitehall and introduce a “sofa Cabinets” system of informality at all levels of government. The intricate corridors of No.10 were thronged with troops of new advisors, some given impressive sounding titles and some, including popular music stars, rather incongruously invited to meet Ministers or senior officials for a photo opportunity and to have their opinion solicited about a wide ranging set of issues on which one might not at first glance have considered them particularly qualified to pronounce.

Of course, the 1997 Labour government did not invent the first hybrid creature to span the divide between the political and the official: Special Advisers were, if not actually invented by Margaret Thatcher, cemented into the Whitehall structure at her insistence. And in one sense they began to erode the ability of the permanent civil service to remain immune from overtly party-political considerations in its own policy-making. As time has gone on, Special Advisers have done much to break down some of the less helpful formalities of decision-making, but they have also made it increasingly difficult for parts of the permanent civil service to maintain its operational independence.

Advisory committees, business Tzars and the like help to bring fresh views and perspectives into policy-making; but inevitably at the same time they add to the difficulties of the permanent civil service, in the sense of making it difficult for them not merely to resist overt party-political interference but also to resist the special pleadings and self-interest of large money-making lobbies.

The appointment of business Tzars has been a particular oddity in constitutional terms: virtually unknown in the United Kingdom until the 1990s, Tzars and their equivalents are now numbered in the hundreds.  Many are unpaid, but their very willingness to serve without any kind of remuneration may lead to the observer wondering what it is that they get out of this role. Most troublingly, there is no formal list setting out who they all are and what they are all advising on; and there is no audit-trail recording what recommendations they have made, the evidence on which those recommendations have been based and what if anything has been done to give effect to their recommendations.

Perhaps in no other area of government is it as important to ensure evidence-based and robustly independent decision-making as in the field of health.  In relation to every decision that affects the health of the public in general, there will be multi-billion pound international business interests that point in different directions, and an old-style hermetically sealed public service is perhaps the most reliable way of ensuring that decisions are taken based on objectively-obtained scientific evidence fed into independent policy-making processes.

When the Alcohol Health Alliance’s chair, Sir Ian Gilmore, resigned from a position with Public Health England because of that body’s new links with the organisation Drinkaware which is funded by the drinks industry, the Royal College of Psychiatrists issued a statement on 11 September 2018 supporting his decision, in one sentence of which it encapsulated the difficulty of balancing the practical importance of independence and policy-making with embracing a modern culture of collaboration and communication: “The alcohol industry has a role in the communication of this guidance, for instance, through product labels but government needs to ensure it is free from industry influence”.

Everyone involved in the production of legislation knows that it is important to engage stakeholders while legislation is being drawn up, so that those at whom regulatory or other legislation is aimed feel that they own the process sufficiently to effectively self-enforce it. Government should work with sectors rather than doing things to them. But at the same time, government needs to protect itself in various ways from becoming simply a conduit for the delivery of policies that serve the interests of those who have the most money and are therefore able to shout the loudest.

There is probably a need for a review of the policy-making process across Whitehall to consider all these issues around the breakdown of archaic formalities, and to consider how to embrace new appetites for and methods of mass communication in such a way as to enhance the democratic independence of policy-making and to avoid the encroachment of undue influences.

The views expressed are those of the author. Posting of the blog does not signify that the Cancer Prevention Group endorse those views or opinions.

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